Table of Content

The structure of anti-extremist legislation
An analysis of 2006 amendments
An analysis of 2007 amendments
Unwarranted enforcement : Criminal Sanctions : Sanctions against Organizations : Sanctions against Mass Media : Other Sanctions
Conclusion
APPENDIX 1. Definitions of Extremism and Extremist Materials


The enforcement of laws usually described as "anti-extremist' began to attract increasing attention in 2006 and particularly in 2007. We hardly need prove that this legislation has been used as an instrument of political pressure and manipulation; in fact, suspicions in this respect were initially voiced by observers at the time of the adoption of the Law on Combating Extremist Activity in 2002, [1] and the first experience of its enforcement supported these suspicions. [2]

Numerous recent media reports and political opposition statements have not been much help in creating a clear picture of what exactly is going on. The complicated, confusing text of this anti-extremist legislation does not contribute to a better understanding either. For these reason, few of those writing about the anti-extremist law have managed to avoid blunders and misinterpretations.

This report seeks to give the reader an understanding of how the set of legal norms which we call "anti-extremist legislation' is organized and how it works, to analyze amendments introduced in 2006 and 2007, and most importantly, to review the abusive enforcement practices observed over the five years since the law was adopted. [3]

THE STRUCTURE OF ANTI-EXTREMIST LEGISLATION

The Federal Law on Combating Extremist Activity was adopted in July 2002. It defines extremist activity (synonymous to extremism, as set out by this law) and provides specific guidelines for punishments applicable to all types of non-governmental groups and mass media found guilty of extremism (political parties are excluded because they are still subject to the same procedures which existed before the introduction of this law). The main targets of the anti-extremist law are organizations (whether registered or not) and mass media.

At the same time, a number of other laws have been amended, primarily in order to bring them into line with the Law on Combating Extremist Activity. Among others, the Criminal Code and the Code of Administrative Offenses have been changed to provide definitions of new crimes and offenses relating to extremist activity.

Throughout the report, the Law on Combating Extremist Activity together with relevant amendments of other laws will be referred to as "anti-extremist legislation' or "the 2002 Law,' even though more amendments have been introduced in subsequent years.

The definition of extremism in the 2002 Law does not refer to the meaning attached to this term in common or political usage. This definition gives no indication of general characteristics, but instead describes extremism through certain acts. The list of such acts may be changed at will and has in fact been changed twice already. The definition is quoted in Appendix 1 (different fonts are used to highlight changes made at different times). One has no choice but to interpret this list of acts literally, because the law fails to provide any conceptual framework to facilitate interpretation.

The original definition of extremism provided in this law included fairly diverse acts. The list was expanded in 2006 and then substantially shortened in 2007, but it has remained excessively heterogeneous. Unless stated otherwise, we will refer to the most recent definition here.

The current definition of extremism includes very dangerous acts, such as attempts to overthrow the constitutional government, and "terrorist activities' (these acts of terrorism are defined in a separate law; [4] in fact, terrorism is already a crime, and its suppression does not rely on anti-extremist law).

The definition of extremism also includes acts described as certain criminal offenses, but given that the interpretation is broader in the anti-extremist law than in the Criminal Code, they do not necessarily have to cause serious public danger - a key characteristic of a crime in the Criminal Code. This is true, for example, of such an important element of the definition as "inciting social, racial, ethnic or religious discord.' This phrase relates to crimes described in article 282 of the Criminal Code (incitement to hatred or animosity based on a certain group characteristic, including the above four), but also to similar behaviors which are not really crimes. As a result, a paper may now be closed for a certain publication, although the author of the publication will not face criminal charges (e.g. this is how the General Line (General'naia liniia) newspaper, the mouthpiece of the National Bolshevik Party, was closed in 2005).

The notion of ethnic and other "discord' can be traced to the Constitution (it also existed before in Soviet law), but its application without appropriate limits may lead to excessive restrictions on freedom of expression and other liberties. Indeed, discord is a broader concept than hatred or hostility, and discord may arise as an indirect consequence of certain acts or statements, not necessarily intended to produce this effect, and not necessarily antisocial. No one should face liability for the remote, not to mention hypothetical, consequences of his/her acts, as this wording implies. This problem is not new in judicial practice, and the solution proposed by the Law on Combating Extremist Activity is contrary to that contained in the case-law of the European Court of Human Rights. Punishment for statements which may spark discord, but do not incite hatred or encourage illegal acts, is contrary to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, for example, Ceylan v. Turkey, 1999).

The wording of "incitement to social discord' is worth mentioning as a particularly dangerous one, because it may refer to any type of social conflict or controversy. Therefore, anyone who publicly refers to a conflict or opposes someone else may be technically held liable for "an extremist statement.'

Some types of acts included in the list may vary significantly - from fairly high to very low - in their intensity and danger to the public. This includes, for example, preventing the legitimate activities of government authorities and other organizations, combined with violence or threats of violence, etc. Violence as defined in the law may vary from serious to insignificant, whereas threats may in actuality be very serious, completely unrealistic or anything in between. Moreover, the incident itself may have other motives than preventing legitimate activities, for example, in interpersonal conflict.

Sanctions for some other acts mentioned in the law are questionable: for example, "extremism' includes making claims of religious supremacy - a sentiment shared by many religious believers and presenting no danger to society.

According to the definition in the 2002 Law, any - even merely technical - assistance to extremist activity is also qualified as extremism. Therefore, the finding of extremism against a certain group, or even a certain type of conduct, may lead to similar findings against a wide range of organizations or mass media involved in any way with those found to be extremists. Given that assistance to extremism is included in the definition of extremism, technically, liability for extremism on such grounds may be extended to an infinite number of persons.



Liquidation of a group or media outlet for extremist activity is the main sanction for extremism. The absence of milder sanctions may perhaps be explained by the extraordinary nature of extremism, but on the other hand, Russian legislation lacks milder sanctions for many other types of offenses. In early 2006, legislators considered a package of amendments introducing, in particular, fines as a penalty for mass media, but the proposal was dumped. This was, in fact, a very positive development, because other amendments in the package were extremely inappropriate. [5]

Liquidation (closure) may be preceded by one or more warnings against extremist conduct. The commonly-held assumption that liquidation should always be preceded by two warnings - or even by two warnings within one year - is based on an established interpretation, rather than on the law per se. Currently the Law on Combating Extremist Activity provides for three procedures.

By the first and the most logical procedure, an organization or a mass media outlet, according to articles 7, 8 , 9, and 11, faces liquidation (ban, or closure) "if it fails to correct the violations which have given rise to the warning... before the deadline indicated in the warning.'

The second procedure corresponds to current practice and has been used more often than the others: "if within twelve months of the warning new evidence of extremism is revealed.'

The third procedure, addressing a potential emergency, is described in articles 9 and 11: "in case of .... extremist activity which has caused the violation of human rights and civil liberties, harm to individuals, public health, environment, public order, public security, property, legitimate economic interests of natural persons and/or legal entities, society and state, or constitutes a real threat of such harm.' Apparently, it is assumed that the consequences described above are so severe that no prior warnings are necessary. But one could question the need to liquidate an organization or a mass media outlet unless their conduct causes any of the above consequences. The third procedure has been enforced a few times against organizations regarded as terrorist.

Before the administrative reform of 2004, warnings were issued to organizations by registering authorities, i.e. by the Ministry of Justice. Since the reform, the new Federal Registration Service (FRS) is not legally a body of the Ministry of Justice, and does not issue warnings (a bill which would empower and obligate FRS to issue warnings is currently being considered by parliament). Mass media outlets are warned by the Federal Service for the Supervision of Mass Media, Communications and the Preservation of Cultural Heritage (Rossviaz'okhrankul'tura). Until 2004, this was the responsibility of the Ministry of the Press, but this function was then delegated to an agency with a shorter name (Rosokhrankul'tura) which in the spring of 2007 merged with another body to form the current agency. Prosecutor's offices may also issue warnings both to organizations and mass media.

Such warnings described in articles 7 and 8 of the Federal Law on Combating Extremist Activity should not be confused with cautions, which under article 6 may be issued to senior managers of organizations or mass media outlets. Such cautions do not have consequences for the organizations or mass media outlets. The cautioned manager, logically, should be liable for failure to comply with the requirements included in the caution, but the law under which he or she might be prosecuted (the Criminal and Administrative Codes) lacks the relevant provisions which article 6 refers to - and this omission is indicative of the poor quality of this interdependent legislation.

A warning is issued if the above-mentioned authorities find evidence of extremism. The same authorities may request a court to liquidate an organization or a media outlet for alleged extremism.

A warning may be appealed in court. If such an appeal is lost, or if the recipient of a warning simply fails to appeal it in court, liquidation may follow (articles 7 and 8 of the Law). This is the fourth procedure of liquidation, in addition to the three described above. This rather bizarre rule has never been applied independently as sufficient grounds for liquidation, but it was mentioned, inter alia, in the judgment of 19 April 2007 banning the National Bolshevik Party (NBP).

A warning which has not been cancelled has the same effect as a judgment of extremism in court, even though a warning may never have come before a judge. It means that the warned group will not be allowed to nominate candidates to the Public Chamber for a year (which makes no practical sense anyway, because Chamber members are appointed, rather than elected, but the rule implies that a warning effectively means an official finding of extremist conduct).

An organization must officially disown its leaders and distance itself from their actions if the latter are found to be extremist, and it must dismiss such persons from its governing bodies. If the organization fails to do so, liquidation may follow (which is what has happened to the Russian-Chechen Friendship Society, see below).

An organization may be suspended without the decision of a court under an indictment pending liquidation, for up to six months or until such time as the activities identified as extremist cease. It is an administrative offense under article 20.2.1 of the Code of Administrative Offenses to continue operating following suspension.

An organization which is not officially registered (whether stripped of its registration for reasons other than extremist activity, or without registration in the first place) may be banned for extremist activity.

It is a crime under article 282-2 of the Criminal Code to continue the activities of an organization which has been banned or liquidated for extremist activity. Punishment for this offense is a maximum sentence of up to three years for the organizers, and for members up to two years of prison. The minimum punishment is a fine of 100,000 rubles for the organizers, and none for members.

Under the 2007 amendments, authorities must publish the names of organizations officially found to be extremist, but at the time of writing (March 2008) none had been published, because as yet it had not been decided which authority would be responsible for this. On 7 March 2008, the second reading of a law which would make the Federal Registration Service responsible for the publication was passed by the Duma. [6]

An individual may be cautioned (as opposed to warned) by the Prosecutor's Office for alleged extremist activity, and may appeal such a caution in court. An individual cannot be punished for extremism per se, unless his/her conduct falls under the Code of Administrative Offenses or the Criminal Code.

Punishable, in particular, are public appeals to extremist activity (see article 280 of the Criminal Code). It is notable that while extremist activity, as already mentioned, is not always a punishable criminal offense, urging someone to engage in such activity may result in a prison term of up to three years under article 280-1 of the Criminal Code, or up to five years under article 280-2 if an appeal is made through the mass media; no minimum punishment is indicated, and article 280-2 provides for a prison term. Comparing article 280 with the legal definition of extremism we will find, for example, that a public invitation to draw swastikas may be punished by years in prison, but the actual drawing of swastikas in public places is punishable by a maximum of ten days detention.

Also punishable is incitement to hatred and animosity (article 282 of the Criminal Code) by anything from a fine of 100,000 rubles to two years of prison, or even up to five years if aggravated by the use or threat of violence, abuse of official position, or for an offense committed by an organized group. Punishable administrative offenses include the demonstration and dissemination of Nazi symbols (article 20.3 of the Code of Administrative Offenses) and mass dissemination of extremist materials (article 20.29 of the Code of Administrative Offenses).

Any material (in print or other format) may be found extremist by a court in a specific judgment; the only materials presumed extremist without judgment are "works by the leaders of the National Socialist German Workers' Party and the National Fascist Party of Italy'. A text cannot be presumed extremist even after its author has been found guilty under article 282 of Criminal Code or after a periodical has been warned for publishing it. The list of materials legally found to be extremist has to be published; the first list was published in July 2007 and now, under article 20.29, the publication of materials included in this list is punishable (that said, a few rulings have not been reflected in the list for some reason).

Notably, sanctions under article 20.29 of the Code of Administrative Offenses, in addition to detention for up to 15 days, fines, and the confiscation of equipment and materials, now also include the suspension of the organization for up to 90 days (if the offender is an organization, rather than an individual). Apparently, a mass media outlet may be held liable as an organization (a legal entity, as the law says).

Dissemination of extremist materials, which is not considered to be "mass dissemination', does not fall under this article of the Code of Administrative Offenses. What can and what cannot be considered "mass dissemination' is left to judicial discretion. On the other hand, the same actions may prompt criminal charges under article 280 or 282 of the Criminal Code.

The 2002 Law did not contain an inventory of crimes which should be considered extremist. Such an inventory containing "crimes of extremist nature' was provided in article 282-1 of the Criminal Code, punishing the establishment of an "extremist community' - i.e. the setting up a group with an intention of committing such crimes. However, the inventory was clearly incomplete and certainly did not correspond with the broad definition of extremism (therefore the Prosecutor General's Office came up with their own inventory for statistics collation).

The 2007 amendments established that "extremist-oriented crimes shall mean in this Code [i.e. the Criminal Code - Author] any crimes motivated by political, ideological, racial, ethnic or religious hatred or animosity, or by hatred or animosity towards any social group, stipulated in relevant articles of the Special Part of this Code and paragraph "e', part one, article 63 of this Code.' All such crimes are also regarded as extremist activity.

Par. "e', part 1, art. 63 of the Criminal Code stipulates that the above are considered as aggravating circumstances with respect to any crime, warranting a tougher punishment. The said motives are also considered as qualifying characteristics, i.e. they always warrant tougher punishments under 11 other articles of the Criminal Code. Before 1997, these included articles 105 (murder), 111 (intentional infliction of serious damage to health), 112 (intentional infliction of moderate damage to health), 117 (torture), and 244 (abuse of corpses and burial places). In 2007, more articles were added, firstly art. 214 (vandalism), and then articles 115 (intentional infliction of minor damage to health), 116 (beating), 119 (threat to kill or to cause serious damage to health), 150 (involvement of minors in crime), and 213 ("hooliganism' - i.e. a public order offense).

Recently, the notion of extremism has been increasingly used in the Russian legislation. It was used, in particular, in early 2006 as part of the restrictive amendments of legislation regulating non-profit organizations (NGOs). An individual found by a court to have engaged in extremist activity is not even allowed to be a member (participant, founder) of an NGO (art. 15, par. 1.2.4 of the Law on Non-profit Organizations; this corresponds to art. 19 of the Law on Civil Society Associations which covers various types of civil society organization such as foundations and other NGOs), let alone be part of the governing body of an NGO. Apparently this applies not only to someone convicted under a criminal article, but also, for example, to the author of material deemed extremist.

Since reform of the electoral law in the autumn of 2006, a court may ban a candidate (or a political party list) from elections for extremist conduct during the election campaign. Most importantly, candidates may be banned for prior statements made over a period equal to their potential term in office (usually four years), if such statements included calls to extremist activity, justification of such activity, or incitement to ethnic, racial, religious, and social hatred (art. 76, par. 7 "g' of the Federal Law on Main Guarantees of Election Rights and the Right to Referendum in the Russian Federation - the foundation of electoral legislation in Russia; this provision does not apply to any statements made before December 2006) . [7]

All mass media, whenever they mention an organization liquidated or banned for extremist activity, must, under threat of a fine (art. 13.15 of the Code of Administrative Offenses) also mention that the organization has been liquidated or banned.

AN ANALYSIS OF 2006 AMENDMENTS

In July 2006, the definition of extremism was substantially expanded. Some added provisions were clearly designed to remove inconsistencies in other legislation relevant to extremism, but a hasty adoption of the amendments resulted in even more inconsistencies. Overall, the amendments made the already imperfect 2002 Law notably worse.

Fundamental changes in the definition of extremism concern the prohibition of any attempts to hinder the operation of government establishments (and also voluntary and other associations) accompanied by violence or threats of violence. A paragraph was added concerning "an attempt on the life of a statesperson or public figure' (the Russian law fails to clarify who should be considered a public figure), even though this provision is essentially already included under "terrorist activity.'

The definition of extremism even included violent acts targeting individual civil servants, regardless of motivation, context, and the degree of public danger of such attacks. Under the 2006 definition, a drunk man who threatens a policeman for stopping him is an extremist offender. Should an NGO leader pronounce a threat against any civil servant, the NGO could face sanctions.

Any public justification of terrorism or extremism was also recognized as extremism (it should be recalled that terrorism is already included in the definition of extremism, so the wording is redundant). At the same time, the notion of "justification' was included in the anti-terrorist article of the Criminal Code (art. 205-2): a note explaining this article says that "public justification of terrorism shall be understood as public statements which recognize terrorist ideology and practice as legitimate and deserving of support and emulation.' It appears inappropriate that such an interpretation (fairly reasonable and workable) should be applied to the much broader - and not necessarily criminalized - object of the Law on Combating Extremist Activity, and in fact, the meaning of "justification' in the Russian language is not limited to the definition above.

As long as "justification of extremism' was included in the definition of extremism, it was technically possible to prosecute "justification of justification of extremism' ad infinitum, just as in the case of "assistance to extremism.'

The definition of extremism was amended to include making a knowingly false accusation of extremism aimed against "anyone holding an official position in the Russian Federation, or a subject of the Russian Federation while on official duty or in connection with his/her official duties.' People "holding official positions' include bureaucrats of almost all levels in the administrative hierarchy, and members of the Russian parliament (federal and regional). Of course, slander is an offense, but this provision raised public concerns over a potential source of official abuse. These concerns have turned out to be justified.

And finally, it is unclear why the amended definition of extremism included an almost verbatim description of discrimination based on race, language, etc., which is already a crime (art. 136 of the Criminal Code). It clearly does not fit in the definition of extremism, however diverse its characteristics may be. By including discrimination, the legislators may have intended to encourage the enforcement of article 136, which is hardly ever enforced today; if so, they missed the mark.

Overall it seems that the amendments were targeted against any type of street protest, because protesters often do things which may be interpreted - in good faith or otherwise - as violence or the threat of violence against the authorities or specific officials. Should any such episode be found extremist, all organizations involved could face bans and other sanctions.

AN ANALYSIS OF 2007 AMENDMENTS

The amendments adopted in July 2007 (effective as of 12 August) are rather diverse, so they are grouped and analyzed below under a number of themes.

The amendments substantially expanded the definition of "hate crime' in the Russian Criminal Code, and this innovation is highly controversial.

Formerly, article 63 of the Criminal Code contained a very brief list of hate motives taken into account as aggravating circumstances for whatever the crime: "racial, national or religious hatred or animosity' (the word "national' in Russian law is understood to mean "ethnic'). The recent amendments added "political,' "ideological,' and also "in relation to any social group.'

It had been felt for a long time that other types of motivation should be added: for example, neo-Nazi murders of anti-fascist activists were clearly motivated by political or ideological hatred, but it was not possible to take this into account when meting out punishment; the same applies to "ideologically-motivated' killings of homeless people or attacks against gay men.

On the other hand, making political and ideological hatred an aggravating circumstance will result in tougher punishments even for minor offenses committed during any political or other public event, because virtually any event has an opponent strongly disliked by the participants for political or ideological reasons. We see no need for the option of tougher punishments: it is extremely rare for judges to mete out maximum possible sentences for hate offenses committed during public events, so even the former provisions of the Criminal Code left ample room for punishing hate offenders more severely. On the contrary, in Russia today, the public and political spheres are not so much affected by politically motivated offenses, riots and vandalism - deplorable as such incidents are - but rather by excessive administrative pressure and over-regulation.

The motive of "hatred against a social group' does not seem functional, because Russian law lacks a definition of "a social group,' and there is no shared understanding of the term in academic or everyday language, which gives too much discretion to enforcers. This has already been demonstrated in cases under article 282 of the Criminal Code, where this hate motive has been included since the end of 2003. At the time of writing, there have been three sentences passed where incitement to hatred against a social group was taken into account. In one instance - namely the Timur Kacharava murder case - article 282 was applied in addition to the main charges of murder and disruption of public order ("hooliganism'), and the court referred to anti-fascists as a social group targeted by the offenders. In two other instances related to "hate propaganda' the main charges were under article 282, and the targeted social groups were the Russian Army (the Stomakhin case, see below), and even the Government of Marii El Republic (the Tanakov case, see below), respectively. In fact, political hatred was involved in all three cases.

The hate motive has been reformulated not only in article 63 of the Criminal Code, but in all articles where this qualifying characteristic is present, and it has been added as a qualifying characteristic to the new articles listed above.

The amended article 213 ("hooliganism') deserves a special mention. Before the amendments, Russian law distinguished between two types of "hooliganism,' or public order offenses. The first type is a small misdemeanor punishable under article 20.1 of the Code of Administrative Offenses: "Petty hooliganism, i. e. using obscene language in public places, offensive molestation of citizens, and other acts explicitly violating public order and security.' The second type is a serious offense punishable under the Criminal Code - i.e. public order offenses committed "using weapons or objects employed as weapons'. [8] The new wording suggests that hooliganism either means such serious offenses (para. "a') or "a gross violation of public order' without the use of any weapons or violence, but with the hate motive (para. "b'). Will there be any difference in treatment with regard to "gross violations of public order reflecting explicit disrespect of the public' punishable under the Criminal Code - and "actions explicitly violating public order and security' punishable under the Code of Administrative Offenses? We doubt it. Apparently even a small misdemeanor, where it is hate-motivated, is punishable under article 213 of the Criminal Code by up to five years of prison, or by up to seven years, if a group or obstruction of police are involved. [9]

Without doubt this amendment of the Criminal Code may result in numerous, excessively tough sanctions against political and ideological protesters, whether racist or not, because the conduct of protesters can often be described (and sometimes rightly so) as "hooliganism.' To emphasize, this excessively strict article is unfair not only with regard to people who disrupt public order for environmental or other public concerns and ideals, but also to those who vent their racist and similar sentiments.

The expanded definition of hate motives has also changed article 214 of the Criminal Code (vandalism) in a radical and dangerous way. [10] The painting of graffiti on walls or on anything else may be, and has been, prosecuted as vandalism. This article does not provide for incarceration under part 1, but in part 2, which deals with vandalism committed by a group or hate-driven, including political and ideological motives, provides for a prison sentence of up to three years. Painters of political graffiti thus may face imprisonment, even though they rarely, if ever, present a danger to the general public, and usually cause only minor property damage. At the time of writing, a National Bolshevik in St. Petersburg faces charges under article 214, part 2, for graffiti criticizing a city official.

One should also note that this expanded hate motive was not applied to article 282 of the Criminal Code, meaning that the propaganda of political and ideological hate is still, in and of itself, not a crime.

The amendments have substantially changed the definition of extremist activity for the better, at least from the legal and technical perspectives.

Firstly, this definition now includes all hate crimes in a new, broader understanding consistent with article 63 of the Criminal Code. It finally reflects what has been intuitively clear since 2002, namely that the anti-extremist legislation is designed to suppress any crimes or offenses of an "ideological' nature including, but not limited to, those traditionally described as hate crime. [11]

Secondly, a few elements have been deleted. We assume that some of them have been found too vague, some others redundant, and still others related to other spheres of regulation. I can only add in brackets the main reasons why I believe they were deleted. Here are the components deleted from the definition of extremism (some of which were added just a year before):

- undermining the security of the Russian Federation (the wording was too vague);

- seizure or usurpation of power (generally, such acts have nothing to do with political or other hatred; as to a hypothetical political insurgency, its participants will apparently be punished in some other manner);

- debasement of national dignity (this lame wording referring to an undefined type of dignity was deleted from article 282 of the Criminal Code a long time ago);

- mass disturbances, hooliganism and vandalism motivated by ideological, political, racial ethnic or religious hatred or animosity, and also motivated by hatred or animosity towards any social group (absorbed by the general definition of hate crimes);

- establishment of illegal armed formations (treated under separate, anti-terrorist legislation);

- attempts on the life of a government official or public figure with the purpose of terminating this person's official or political activity, or in revenge for such activity (as above);

- use of violence against a representative of government authority, or threats to use violence against a representative of government authority or his family in connection with his exercise of official duties (as opposed to the previous year, "extremism' now does not include any violence against any official or police officers under any circumstances - which was clearly absurd; in particularly serious cases such violence may fit the definition of terrorism, and violent disruption of the work of government establishments, etc., has been retained in the definition of extremism).

It is also very important that the "justification or excuse of extremist activity' is no longer interpreted as extremism. The provision expanding the definition of "extremists' to include anyone who tries to defend them has also been deleted.

There have been some other improvements:

- the provision against unequal treatment has been aligned even more with article 136 of the Criminal Code ("discrimination'), even though it remains clearly redundant in the anti-extremist law;

- the provision on "hindering legitimate activity of government authorities' was extended to include "local self-government, ... voluntary and religious associations, and other organizations' - i.e. now this provision protects other people, and not just government bureaucrats;

- extremism during elections is not limited to interference with the election committees, but also interference with what citizens do.

On the other hand, one of the vaguest elements of the definition - the incitement to hatred against members of certain groups - has been stripped of the reservation concerning violence or encouragement to violence. The excessive vagueness of the latter term may result in official abuse in the absence of this reservation.

A necessary proviso was deleted from the provision concerning false accusations against a government official alleging his/her extremist activity: formerly, the reservation required that "libel should be established by a court.'

A few other important new details should be mentioned. To begin with negative ones, we should highlight, firstly, the requirement to indicate the relevant judicial ruling every time any organization deemed "extremist' is mentioned. Secondly, broader powers have been given to authorities to tap the phone conversations of people suspected of, or charged with, grave or very grave crimes, and those suspected of moderately serious crimes (i.e. the majority of offenses, including extremist offenses). Notably, a similar provision in article 8 of the Law on Detective Operations also allows tapping the phones of "persons who may possess information on the said crimes' - i.e. a very broad range of people.

Some of the recent amendments are definitely positive, though. Thus, provocation by law enforcement agencies was expressly forbidden as part of the criminal investigation of extremist or, indeed, any other cases.

Generally speaking, the 2007 amendments have resulted in the qualitative improvement of the "extremist activity' definition. Even though many inconsistencies and defects remain, the law is now much more applicable and contains fewer provisions likely to impose inappropriate restrictions on civil rights and liberties.

New types of hate motives added to the Criminal Code create the potential for both appropriate and inappropriate enforcement. It is premature to assess this particular amendment before some enforcement practices have emerged, even though the trends we have observed over the past year (see below) give us every reason to be concerned that this reform of the Criminal Code may have more negative than positive consequences. To reiterate, this particularly concerns article 213 ("hooliganism') and article 214 ("vandalism').

UNWARRANTED ENFORCEMENT

Anti-extremist legislation is not designed, of course, as an instrument to be used exclusively for the politically-motivated suppression of civil liberties. In many instances one cannot but welcome the enforcement of such legislation. In fact, appropriate enforcement is increasingly common (although not yet as common as it should be). [12]

That said, I will focus only on unwarranted enforcement here.

Criminal Sanctions

The most large-scale example of unwarranted anti-extremist criminal sanctions is the enforcement of article 282-2 against members (actual or assumed) of Hizb ut-Tahrir. This radical Islamist organization was banned in Russia by the Supreme Court on 14 February 2003 (alongside fourteen other groups) for terrorism, rather than "propaganda' (which would have been understandable in principle), even though Hizb ut-Tahrir does not practice violence. This obvious judicial error still has not been corrected, [13] and has resulted in many questionable trials ending in convictions of Hizb ut-Tahrir members under article 282-2 and even article 205-1 ("involvement in terrorist activity'; the charges have been lifted since the amendment of this article by Federal Law No 153 at the end of July 2006). [14] Members of other organizations banned for extremism - some regional chapters of the Russian National Unity (RNE) for example - have never been convicted under the same article (although the trial of a few RNE activists in Tatarstan under article 282-2 began in December 2007).

In the eyes of the public, the main anti-extremist article remains article 282 of the Criminal Code ("incitement to hatred and animosity, as well as denial of human dignity'). The term "extremism' is often associated with this article, even though this is far from correct. Instead, article 280 of the Criminal Code ("public calls to extremist activity') should be considered the main anti-extremist article.

The first clearly ill-founded conviction under article 282 involved the organizers of Beware, religion! exhibition on 28 March 2005. The exhibition displayed items of modern art which used Christian symbolism, and many believers found it offensive. No one raised the issue of banning the exhibition - perhaps because it was promptly raided and destroyed by radical Orthodox activists. Instead, the organizers faced charges of incitement to religious and, for some reason, national (in other words "ethnic') hatred against Orthodox Christians and ethnic Russians, respectively. The verdict was based on expert opinions which were extremely ideological and very remote from the principle of secular government. [15] Iuri Samodurov and Liudmila Vasilovskaia were sentenced to fines of 100,000 rubles each. It could be argued to what extent the exhibits were offensive and whether banning the exhibition would have been justified, but offending religious sentiments is not a crime under article 282 of the Criminal Code. Consequently, the suspicion arose that the verdict was motivated not only to protect religious sentiments, but also to target the Sakharov Center and Museum (headed by Iuri Samodurov) for their human rights activity.

In June 2007, a similar case was opened under article 282 against another exhibition, Banned Art - 2006, also organized by the Sakharov Museum.

Yet another, even less appropriate sentence was meted out to the director of the Russian-Chechen Friendship Society (Obshchestvo rossiisko-chechenskoi druzhby, ORChD), human rights activist Stanislav Dmitrievskii on 3 February 2006 for publishing statements by Aslan Maskhadov and Akhmed Zakaev in his paper Pravo-Zashchita (Rights-Defense). Understandably, both texts were biased and strongly critical of Russia's policy-makers, but the texts did not contain anything that could be interpreted as incitement to ethnic hatred; bringing charges against the publisher was totally inappropriate. However, Dmitrievskii was sentenced to two years of probation.

Incidentally, even if we assume that Maskhadov's and Zakaev's statements contained evidence of a punishable offense, the verdict would have contravened the European Court of Human Rights judgment in the high-profile Jersild v. Denmark case: journalists should not face criminal liability for the offensive statements of people whose views they report. Therefore, Dmitrievskii's application to the ECHR has good prospects of success.

The third sentence of this type dated 25 December 2006 targeted Vitalii Tanakov, an activist of the Mari nationalist movement and hereditary priest of the traditional (pagan) religion of the Mari. In his brochure A Priest Speaks (Zhrets govorit), Tanakov criticized the authorities of Marii El Republic, affirmed his religion as superior to other religions and "civilizations,' but did not incite hatred against people of other faiths or origins. Tanakov was not found guilty of incitement to ethnic and religious hatred, but was found guilty of debasing other people for their ethnic or religious affiliation, which is also a very questionable judgment, since Tanakov repeatedly emphasized in his brochure that he makes a distinction between cultures and religions on the one hand, and their followers on the other.

Tanakov was also found guilty of debasing a certain "social group' - members of the Government of Marii El Republic - who did indeed face some rather offensive criticism from Tanakov. This excessively broad definition of a "social group' raises even more doubts as to the legitimacy of his conviction.

A similar case under article 282 of the Criminal Code was opened in the Komi Republic against rock musician Savva Terent'ev, who made a rude comment in his LiveJournal blog against police corruption. Terent'ev was unfairly charged with incitement to hatred against the entire police force as a social group, and even though the reason for the prosecution was devoid of substance, and in spite of strong public protests, the case went to court at the end of March 2008.

A less dramatic example of inappropriate punishment was the conviction of community activist Boris Stomakhin on 20 November 2006 in Moscow. [16] Stomakhin was found guilty of incitement to hatred against the Russian Army as a social group. We believe that incitement to hatred against the army and against Russians as an ethnic group was in fact proven in court, although Stomakhin's pronouncements to this effect did not appear to pose any public danger. Stomakhin's indictment under article 280 of the Criminal Code was more appropriate, because he had made public appeals to Chechen separatists to conduct new terrorist attacks, and applauded those already committed. [17] However, the punishment meted out to Stomakhin - five years in prison - is unprecedented in its severity under article 280 and 282, and it is particularly strange in view of the low popularity of the newsletter and the website which carried Stomakhin's publications. It raises suspicions that Stomakhin's sentence was particularly severe because of its content, which differed from the pronouncements of other offenders convicted under these articles (neo-Nazi, racists etc.).

There have been more than a few cases of article 280 being used to threaten and intimidate people, rather than prosecute them, but the thin line can be easily crossed, as a recent example has demonstrated. Charges under article 280 were brought against Petr Gagarin, a retired resident of Orel, for publicly saying at a Communist Party rally in August 2007 that the local Governor should be executed. On 14 December, a magistrate court dropped charges under article 280, but imposed a fine on Gagarin for offending the Governor. In February 2008 an appeal was launched before a federal court.

On 4 May 2007, a city court in Rybinsk sentenced Andrei Novikov, a journalist who was popular in the 1990s, to involuntary psychiatric treatment under article 280 (he was released in November). Of the articles mentioned in the indictment, only two - as far as we know - were available on the internet, and these did not contain any appeals to violence. Such appeals could have been found in other texts linked to Novikov, but apparently, these have never been published.

Sanctions against Organizations

Since mid-2002, many organizations which might have been found extremist, including nationalist groups, have been liquidated (i.e. stripped of their registration) in Russia. In most cases, however, the formal reason of their liquidation was not a violation of the 2002 Law, but other, more formal, violations (such as failure to file required activity reports, etc.). This is true, in particular, with regard to the high-profile liquidation of the National Imperial Party of Russia (Natsional'no-derzhavnaia partiia Rossii, NDPR) in 2003: they were liquidated for having failed to register a sufficient number of regional branches before the deadline. Charges of non-compliance with formal requirements have not been sufficiently convincing in many cases (the NDPR case was also arguable), and very often the practice has been quite selective. Sanctions taken under formal pretexts may hinder the activity of dangerous groups, but at the same time they undermine the government policies in this area.

Earlier we mentioned the Supreme Court judgment of 2003 banning 15 organizations as terrorist. This judgment was effectively made behind closed doors, and even the list of banned organizations (which has since grown by two names) was not officially published before July 2006. [18] Therefore the public cannot adequately discuss the judgment and form an opinion as to whether it was well-founded in respect of all banned groups.

There have been a number of verdicts banning organizations for a single "extremist' offense, namely the use of a symbol resembling a swastika. In particular, courts referred to swastika-like symbols when they banned certain RNE organizations. This application of the Russian law appears dubious, because even though the RNE's symbol looks like a Nazi swastika and this resemblance certainly has something to do with their ideological kinship, we cannot say that the RNE's "spiked wheel' resembles a swastika to the extent of being confused with it - and this is the standard established by law.

However, there have been a few cases of well-founded liquidations for extremism, such as the liquidation of certain neo-pagan organizations affiliated with the so-called Old Believer-Inglings in Omsk in 2004 and of two small groups in Krasnodar Krai in 2006.

In the high-profile case of the Russian-Chechen Friendship Society (ORChD), the 2002 Law was enforced to liquidate a group which was clearly not extremist, even though the liquidation was consistent with the law. The ORChD was liquidated by a court order on 13 October 2006 (the judgment came into force after it was upheld by the Supreme Court on 23 January 2007), because ORChD leader S. Dmitrievskii was found guilty of an extremist crime (see above). However, the organization did not disown him, as they were required to do by the 2002 Law, and refused to remove him from their governing bodies, as required by the legislation on NGOs since 2006. The formally lawful judgment ordering the ORChD's liquidation is based on an unlawful verdict against Dmitrievskii.

There was public controversy with regard to the Moscow City Court judgment of 19 April 2007 banning the National Bolshevik Party (Natsional-bol'shevistskaia partiia, NBP) as extremist. On 7 August, the Supreme Court upheld the judgment, and it came into force.

Some of the NBP's actions may be described as petty political hooliganism (we believe that the courts were excessively tough on them by qualifying the NBP's occupation of some government offices as criminal offenses, which resulted in prison terms for more than 30 National Bolsheviks). NBP activists have been caught committing even more serious offenses, including the storage of weapons. In the past, the NBP has conducted all sorts of propaganda which could be described as inciting violence or racist. In this sense, the judgment warranting the closure of the party's paper, Limonka, in 2002, was well-founded; and the judicial order to close Limonka's successor, General Line, in 2005, was partially legitimate. In fact, recently there have been progressively fewer cases of violence or ethnic and racial hate propaganda in the NBP's actions (even though ethnic Russian nationalism, in a milder form, is still a feature of NBP rhetoric).

The judgment banning the NBP (the organization was not officially registered anyway) was based on three former warnings. Two of them were for invading the St. Petersburg Legislative Assembly (Zakonodatel'noe sobranie, ZAKS) sessions and an election committee in Moscow Oblast. Members of the party hindered the work of ZAKS and the election committee, but they only used minimal violence. A third warning was triggered by truly dangerous publications in one of the NBP's regional papers, but the people responsible for the publications had long before left the NBP, alongside other hardcore nationalists unhappy with the NBP's new political course. It appears obvious that the three episodes were not sufficient to ban such a large organization (not to mention the substantial procedural violations associated with the ban). In particular, the court failed to establish the use of violence by National Bolsheviks. [19]

On 21 March 2007, the Moscow Prosecutor's Office suspended the NBP pending a judgment. The NBP continued their activity anyway, but administrative penalties warranted by 20.2.1 of the Code of Administrative Offenses were only imposed a couple of times.

Even before the NBP ban came into force, a few organizers of mass events were warned for cooperation with the NBP. As an illustration of the authorities' poor performance in the enforcement of anti-extremist legislation, such warnings did not refer to the suspension of the NBP, but rather to a ban - or, in some cases, to the former judgment warranting the liquidation of the NBP on technical grounds, but incapable of restricting the group's operation de facto (in fact, some of the warnings have been successfully challenged in court).

For some reason, the NBP's flag - deemed to resemble the Nazi flag - seems to play a major role in all these episodes. Indeed, the only difference between the NBP's flag and that of Hitler's National Socialist German Workers' Party is that a hammer and sickle emblem, rather than a swastika, is depicted in the circle, and this similarity is, of course, not accidental. It is also true that the said distinction does not make the two flags similar "to the degree of confusion,' as stated in the definition of extremist activity and by article 20.3 of the Code of Administrative Offences. On two occasions, courts confirmed the difference between the NBP and Hitler's National Socialist Party flags and cancelled sanctions imposed on the group for the use of their flag (in Nizhnii Novgorod in 2003 and in Arzamas in 2007).

Since the ban of the NBP came into force, any action taken on behalf of the NBP falls under article 282-2 of the Criminal Code. The first criminal case was opened on 12 February 2008 against one of a group of National Bolsheviks protesting on the first night of Kiss Me Off the Record (Potselui ne dlia pressy - a film where the main characters are easily recognizable as Vladimir Putin and his wife). Before this event, authorities had used article 282-2 only to intimidate the National Bolsheviks, but now they have added selective enforcement to the threats. It should be noted that the case was opened against only one participant in the protest, and for an incident which would not have warranted any other criminal charges.

Another case under article 282-2 was opened against Dmitrii Isusov, a National Bolshevik leader in Arzamas (a small city outside Nizhnii Novgorod). Police conducted mass searches in Nizhnii Novgorod on 20 March in connection with this case, so we can expect a longer list of suspects.

The ban of the NBP, by virtue of the organization's size (they have at least several hundred active members), may have serious implications for other groups and individuals. Any assistance to the NBP (or anything which may be regarded as assistance) may also be considered extremist activity and may trigger sanctions against other organizations and mass media.

An example of how such sanctions may be imposed was a case of extremist charges against the Memorial Human Rights Society. In February 2006, Memorial received a warning for extremist activity for a publication on their website which contained Mufti Nafigulla Ashirov's commentary on four brochures of the Hizb ut-Tahrir Islamic Party. Ashirov failed to see in them any appeals to violence or incitement to religious and national (ethnic) hatred. In fact, Ashirov did not express support for Hizb ut-Tahrir and did not even quote from their texts. Even if his opinion was wrong, the commentary as such neither incited any actions, nor did it justify any extremist behavior. What the Moscow Prosecutor's Office found extremist was a mere expression of disagreement with the Supreme Court. Ashirov and Memorial appealed the warning, but lost the appeal.

The NBP case highlighted yet another legal conflict. The decision to close the organization was based on three episodes, all of which were also considered in criminal proceedings. The question was: which type of proceeding - criminal, administrative or both - should establish the relevant facts of the case. In the NBP case, the court relied on a criminal verdict concerning one of the episodes and on preliminary findings of the criminal investigation into the other two episodes. This appears to contravene Russian law, because administrative proceedings may rely on a criminal verdict concerning the same circumstances (but not vice versa), whereas in the absence of such a verdict it is up to the court to assess the circumstances in administrative proceedings.

Besides, on 28 November 2007 the criminal case against the National Bolsheviks who had interfered with a ZAKS session was dropped, meaning that one of the three episodes did not matter any longer. The judgment was challenged accordingly, but on 11 February 2008, the Moscow City Court failed to acknowledge that the dropping of the criminal investigation concerning one of the episodes was "a newly revealed circumstance,' warranting the judgment to be reconsidered. It appears that the violence used by a few National Bolsheviks in ZAKS was not found serious enough for a criminal verdict, yet it was sufficient for a ban of the entire organization. The same applies to a similar episode which occurred outside Moscow: two National Bolsheviks face charges under part 2, paragraph "c', article 141 of the Criminal Code (interference with the work of election commissions by a group upon a prior agreement, or by an organized group), but not under paragraph "a' of the same, which deals with violent attacks.

The Moscow City Court has effectively confirmed that those parts in the definition of extremist activity which resemble descriptions of criminal offenses are not crimes in reality, but such actions may be found extremist even though they are not criminalized.

The same problem was observed in the proceedings which banned the Council of Balkar Elders (Sovet Stareishin Balkarskogo Naroda, SSBN) in the Republic of Kabardino-Balkaria. The key evidence in the case was a statement by the SSBN found by the Prosecutor's Office to be false accusing the President of Kabardino-Balkaria of terrorism and discrimination. The Supreme Court of Kabardino-Balkaria ordered the liquidation of the SSBN on 14 January 2008, even though proceedings are still pending in two criminal cases opened in connection with the same statement under part 3, article 129 of the Criminal Code (libel) in August and November 2007. The Supreme Court of Kabardino-Balkaria established that it was competent to consider the case on its merits without waiting for a criminal verdict, and unlike the Moscow court, referred in its judgment to grounds for finding the SSBN guilty of libel in its accusations against the president. In fact, these grounds were far from convincing. [20] The Federal Supreme Court quashed the judgment of the Kabardino-Balkaria Court on 18 March 2008 and sent the case back to be reconsidered.

The Federal Supreme Court should probably look into this legal conflict between the Law on Combating Extremist Activity and the Criminal Code, but it does not seem to be in their immediate plans.

In the meantime, the authorities have already attempted to liquidate the Voice of Beslan (Golos Beslana) organization on similarly unsubstantial grounds, for allegedly falsely accusing President Putin of aiding and abetting terrorism.

Another development which had strong resonance was a warning issued by the Prosecutor's Office in May 2007 to the Krasnodar Regional Chapter of the Yabloko Party for the distribution of books authored by political scientist Andrei Piontkovskii. At first the court cancelled the warning, perhaps because Piontkovskii's books were freely sold in Russia and their author had never been challenged for publishing them. But then prosecutorial officials did their homework, and on 14 August the same court upheld the warning. A day later a judicial hearing began in Moscow to ascertain whether two of Piontkovskii's books are extremist. On 2 October the Krai Court upheld the warning to Yabloko, making it final, even though the proceedings over Piontkovskii's books are still pending (at the time of writing, the end of March 2008).

In one instance, registration was denied a group on a clearly false pretext of allegedly extremist activity. In Tiumen Oblast, the local office of the Federal Registration Service denied registration to Rainbow House, a LGBT (i.e. sexual minorities) group, explaining that their proposed activities "may undermine the security of Russian society and the state,' because they "undermine the sovereignty and territorial integrity of the Russian Federation by reducing its population.' In theory, the outcome of this dispute is pre-determined by the recent removal of the phrase about "undermining security' from the definition of extremism; however, on 17 December 2007 Rainbow House was finally denied registration by the Tiumen Oblast Court and took the case to Strasbourg in March 2008.

Sanctions against Mass Media

The 2002 Law made it very easy to close mass media outlets. With the vague definition of extremism and the fairly low level of political correctness in the Russian mass media, it is not hard to find a few articles among the multitude published in any Russian paper which would be punishable under at least one provision of article 1 of the Law on Combating Extremist Activity.

A newspaper may even be closed for such offenses without prior warning, but Rosokhrankul'tura has voluntarily decided to issue at least two warnings before seeking the closure of a publication, [21] and they usually comply with this self-imposed restriction.

Apparently due to uncertainty about applying the definition of extremism, the average number of publications closed for extremism was lower after the adoption of the law than it had been in the five years before the law (for similar motives). We know of just four publications closed under the 2002 Law for incitement to ethnic hatred and calls for extremist activity - Russian Siberia (Russkaia Sibir, Novosibirsk) and For Faith, Tsar and Fatherland (Za Veru, Tsaria i Otechestvo, Orenburg) (the sanctions were well-founded in both of these cases); General Line (controversially imposed); and Rights-Defense (the closure of this Nizhnii Novgorod newspaper was triggered by the same publications for which Dmitrievskii was convicted; in other words, it was unfounded), even though many more complaints seeking closures of publications have been filed.

The main form of pressure used by Rosokhrankul'tura (now renamed Rossviaz'okhrankul'tura) against mass media is a warning. Some editorial boards challenge such warnings in court, and sometimes they win. Generally speaking, warnings do not make a substantial difference to editorial policy. Rather, such warnings (particularly in cases of more than one warning) are both signals and instruments of informal pressure against a publication. In some cases, publications have been stopped or forced to switch to their web-based versions as a result of such pressure.

The overall number of warnings against extremist activity is unknown, because such warnings are issued both by Rossviaz'okhrankul'tura and the Prosecutor's Office, and the latter's data lack transparency. According to their report, Rosokhrankul'tura issued 39 warnings in 2006 which were not cancelled by the courts, [22] and a total of 43 in 2007. [23]

There have been quite a few inappropriate warnings. At least six of the mentioned 39 Rosokhrankul'tura's warnings issued over 2006, and seven of the 43 issued in 2007 were unfounded, and three warnings were eventually quashed by the courts (moreover, we do not know enough about some of the cases to be able to assess them).

Unfounded warnings are often the result of an excessively literal approach to the law and/or of over-zealous efforts to protect ethnic and religious sensitivities. The definition of extremism in this respect is open to broad interpretation.

A number of inappropriate warnings were issued for the use of swastika to illustrate clearly anti-fascist materials, and such use is culturally acceptable and not prosecuted. It is true, however, that the law makes no reservations about this sort of use.

A series of episodes in February 2006 was linked to the so-called "cartoon scandal'. Danish cartoons depicting the Prophet Mohammad were reprinted in a few publications to illustrate the debates around the scandal. Two papers were then warned by Rosokhrankul'tura, and the editor of yet another paper - Our Region+ (Nash Region+, Vologda) - faced criminal charges. The owner closed the paper, and the editor-in-chief Anna Smirnova was sentenced under article 282 of the Criminal Code to a fine of 100,000 rubles. Fortunately, a higher court acquitted Smirnova, but the paper (notably, a paper independent of the Oblast governor) never came out again.

At about the same time, the Town News (Gorodskie Vesti, Volgograd) was warned by the Prosecutor's Office and closed by its owner, the municipal administration, for a cartoon designed by the paper which depicted the founders of four world religions. Neither independent experts, nor even religious figures, found the cartoon offensive. Nevertheless, the cartoon offended the local United Russia Party chapter, and then the Prosecutor's Office. Shortly afterwards, the paper was reinstated by the municipality. This story is an example - unfortunately, just one of many examples - of politicians seeking publicity in inappropriate and harmful ways by exploiting the "fight against extremism.'

There was a parallel attempt to liquidate, without prior warning, the Bankfax news agency in Altai just for one intolerant comment posted on their web forum (and promptly removed by the editors). After a long litigation, Bankfax scored a final victory in the Supreme Court on 12 September 2006. Criminal prosecution of the news agency staff and the author of the posting also failed. But this high-profile case affected the media and the internet community as the first attempted criminal prosecution for a posting on a web forum (see the Savva Terent'ev case, above), and especially as a prosecution against the owners of a web forum for postings made by a guest (later there were some criminal prosecutions triggered by postings on web forums and blogs, but the charges in those cases cannot be described as totally unfounded).

The Erzian' Mastor newspaper in Saransk (Mordovia) faces closure for kindling ethnic discord. Its publishers are, undoubtedly, Erzia nationalists advocating for separate cultural and political development, but not for separation from the Russian Federation. They do not incite hostility and hatred against other peoples, which is clear even from the examples quoted by the experts commissioned by the local FSB to produce an expert opinion in support of the prosecution. The only thing they could charge the paper with was "a covert attempt to provoke actions based on national [ethnic] and religious intolerance.'

Even a neutral media report depicting the activity of nationalist groups may be found extremist. In 2006, Rosokhrankul'tura warned Zyrian Life (Zyrianskaia zhizn', a Komi Republic newspaper) for the publication of extremist materials; the warning was triggered by a series of reports and an interview with a local nationalist leader Iuri Ekishev, where the reporter exposed the demagogical nature of nationalist slogans. The publishers lost their funding and were forced to close their paper-based version. Then the authorities attempted to close the paper altogether simply for quoting some politically incorrect statements made by the local ombudsman in an interview. Fortunately, Rosokhrankul'tura's action was dismissed on 5 June 2007 in the appeal proceedings before the Supreme Court of the Komi Republic.

Warnings are not necessarily linked to political disloyalty or even to administrative pressure by government of different levels against mass media on "their' territory. For example, at the end of August, the major national daily newspaper Izvestiia (News) was warned for an article by D. Sokolov-Mitrich about ethnic problems in Yakutia. The article could hardly be described as objective or promoting ethnic tolerance in Yakutia, but it could hardly be considered extremist either. [24]

The case of Zyrian Life was not the only success story of a mass media outlet successfully defending itself from absurd accusations.

The Saratov Reporter (Saratovskii reporter) paper was warned twice within two days in September 2007. One of the items which provoked a warning showed President Putin as Von Schtirlitz [a character from a very popular mini-series "Seventeen Moments of Spring' from the 1970s, about a Soviet spy in the Nazi high echelons of power], and Rossviaz'okhrankul'tura identified the propaganda of Nazi symbols in this image. The second item which triggered a warning was entitled Do not Beat a Yid - Russia Is Saved (paraphrasing the antisemitic slogan Beat Yids and Save Russia); however, the article, in our opinion, did not say anything offensive, and the title was not inappropriate. The editorial office received the warnings together with a court summons since the authorities had requested closure of the paper. On 31 January 2008, Saratov Oblast Court considered the controversy with Schtirlitz's Nazi uniform and judged in favor of the paper, denying the request to close it.

Also in Saratov, the local mid-Volga regional chapter of Rossviaz'okhrankul'tura lost a similar case. A local paper, New Times in Saratov (Novye vremena v Saratove), published a very critical article about the city university, illustrated by photos of a session of the University's Academic Board combined with images from Hitler's National Socialist German Workers' Party congress (stills from the "Triumph of the Will' film). The publication clearly attached a negative meaning to the association with Hitler's party, but Rosokhrankul'tura agreed with the University, alleging that this was the propaganda of Nazi symbols. However, on 7 December 2007 the Saratov Court of Arbitration canceled Rosokhrankul'tura's warning.

Rossviaz'okhrankul'tura appears increasingly formalistic in the enforcement of its self-established rule: it should issue two warnings before seeking liquidation of a media outlet. The New Petersburg (Novyi Peterburg) newspaper received two warnings within a few days of each other in November 2007, and liquidation proceedings were launched immediately afterwards. Moreover, the paper was suspended, even though this interim measure is not provided by the anti-extremist law for mass media outlets, but for NGOs. [25] Unfortunately, we cannot judge the lawfulness of one warning, as to the other warning, it was issued for an unpublished (!) article encouraging people to take part in the Dissenters' March (the printers rejected the paper with this article). New Petersburg is a mouthpiece of nationalists and it has provided many reasons for warnings, but the liquidation proceedings were launched, hastily and in violation of proper procedure, only after a publication about the Dissenters' March.

There are two more reasons why the New Petersburg case is notable. Firstly, the authorities have used pressure against an opposition paper in a number of ways simultaneously. The editorial board may be forced to abandon the publication even after changing its name. Secondly, even though the authorities have had many opportunities to close the paper legally, they have chosen an arbitrary pretext to do so.

To illustrate the latter tendency, we refer to a much more radical nationalist paper, Duel, which the authorities have been trying for months to close. It should have been easy to find a few intolerant articles in Duel to justify closure of the paper. Instead, the case relied on two controversial warnings issued for material entitled "Your Vote - Your Judgment.' This is a text which has been published regularly in every other issue of the paper for years, calling for a nationwide referendum, the adding of a new article to the Constitution and the adoption of a related law whereby the Russian President and Duma members are held liable and face punishment (up to and including the death penalty) for the deterioration of living standards. The text contains a number of clearly unlawful provisions, such as a proposal to outlaw bureaucrats who harm the people. However, an appeal for a referendum is not an extremist offense, and the text did not encourage anything illegal, except maybe the vague phrase "Should anyone interfere with our intention to walk this legal path, the AVN will force them to comply with Russian law.' [26]

And finally, speaking about unwarranted pressure against mass media, we should mention a new practice that emerged in the spring of 2007. Usually publications suspected of extremism are reviewed by experts (linguists, social psychologists, etc.). There have been many incidents with The Other Russia's publications where the authorities confiscated dozens of copies, and even entire print-runs, under the pretext of reviewing them for extremism.

This practice was dramatically scaled up during the recent presidential and especially the parliamentary election campaigns.

Other Sanctions

Finding Materials Extremist

The 2002 Law allows authorities to ban certain texts, films, and other materials. A court judgment finding material extremist results in sanctions for its mass dissemination under article 20.29 of the Code of Administrative Offences. This new article of the Administrative Code has not been applied yet.

The current list of extremist materials is rather short. Apparently, courts simply forget to find extremist those materials which they refer to when convicting individuals or banning organizations.

There have been a few striking examples of inconsistent judgments. On 20 February 2008 a court, following lengthy proceedings which are probably still ongoing, refused to find the brochure A Priest Speaks by Vitalii Tanakov (see above) extremist, despite Tanakov's conviction under article 282 of the Criminal Code for having produced the brochure. The Court explained that "debasing other people' is not part of the definition of extremist material (see Appendix 1), and that Tanakov did not do anything which is mentioned in the definition, such as encourage extremist activity etc.

This is yet another example which confirms a lack of consistency in the assessment of the same actions under different procedures of the anti-extremist legislation.

A federal list of extremist materials required by the 2002 Law was published for the first time on 14 July 2007, but it was incomplete. Technically, it had been impossible to enforce article 20.29 of the Code of Administrative Offenses before the list was published. At the time of writing, the official list published in Rossiiskaia gazeta has 101 items (books, articles, issues of magazines, films, music albums, etc.), and in addition we know about seven other verdicts finding certain materials or groups of materials extremist. [27]

Notably, 62 items on the 101 officially banned materials are Islamic, and 14 are neo-pagan.

In a landmark judgment made in May 2007 by a court in Novosibirsk, but for some reason absent from the official list published in Rossiiskaia gazeta, the court found extremist four Islamist and separatist websites of the North Caucasus: Kavkaz Center, Chechen Press, Daimokkh, and Alani (Karachaevo-Balkar) News Agency. The judgment referred to the entire websites, rather than to certain materials published on them. [28] This judgment per se was incapable of restricting access to the said websites hosted outside Russia; to enforce the judgment, the court ordered four local providers to block their clients' access to these websites. This judgment is unprecedented and needs further analysis. Its effect (blocked access for some local users) is limited, and the judgment contravenes the terms of the contract between a provider and its customer (at first the providers intended to challenge the judgment, but then decided to comply).

The banned materials vary widely as to the degree of public danger they pose. In many cases, such danger is questionable. Among other things, the Fundamentals of Tawheed by Al-Wahhab, founder of Wahhabism, was banned in Russia in April 2004: it seems strange to ban an eighteenth century religious treatise.

Serious concerns were raised by the 21 May 2007 judgment of Koptevskii Court in Moscow upheld by the Moscow City Court on 18 September banning the Russian translations of 14 books by the twentieth century Turkish theologian and philosopher Said Nursi. Of course, Nursi is an anti-secular author, but he is a widely recognized Muslim theologian, his books are not banned in Turkey, and we have no reason to believe that his followers in Russia are members of extremist communities. Since the judgment, these groups have come under attack and face charges of extremism if suspected of distributing books written by their religious teacher. Formerly suspended criminal proceedings against "Nursists' were resumed, [29] and a series of searches were conducted, but at the time of writing, no one faces charges.

The current procedure for finding materials extremist also causes some other problems, exemplified by the so-called "Buguruslan list.' In August 2007, a court in Buguruslan (Orenburg Oblast) found 16 texts - confiscated earlier in the Al Furkan Madrasah case -[30] extremist. The judgment's reasoning is vague, [31] while an unusually strong reaction from the Russian Council of Muftis suggests that they are not convinced by the reasons given for banning some of the texts which are very popular among Russian Muslims. The judgment remained virtually unknown to broader public until the publication of an updated banned list in Rossiiskaia gazeta at the end of December; for some reason, the list only contained the titles without other details, making it impossible to identify the texts. The publishers of books and brochures banned by the court had either changed their addresses, or no longer existed, or there was no publisher in the first place, therefore none of the interested parties attended the proceedings. As a result, they missed the deadline for an appeal. People affected by the ban - i.e. those who possess the books - do not have the possibility of challenging it. Moreover, the court refused to provide a copy of the judgment to the lawyer, Rustem Valiullin. He has taken the case to the ECHR, [32] but it is still possible to correct the procedural problems by appealing to the Supreme Court before going to Strasbourg. [33]

Finally, we have observed the courts' increasing interference in purely theological debates. On 7 March 2006, a court in Samara found a website extremist for an article describing the celebration of No Ruz, and warned the imam and the muezzin of the local mosque against dissemination of this article. The author of the article argued that No Ruz had pagan origins and so it cannot be considered a Muslim holiday. Apparently, the reason for the ban is that many people associate this type of statements with armed supporters of "pure Islam' who reject local customs and traditions, but this reason is neither legal nor sensible.

Since the end of 2007 and the beginning of 2008, Prosecutor's Offices in different parts of Russia appear to be trying very hard to find extremist materials. Some proceedings have been simply absurd, as demonstrated by just two examples observed in January and February 2008.

The Moscow Prosecutor's Office seeks to ban a book by Professor Alexander Ermakov entitled The Nation's Henchmen. The Wehrmacht in Nazi Germany (Oruzhenostsy natsii. Vermakht v natsistskoi Germanii). This research paper about the Wehrmach is by no means sympathetic to Nazism, but the Prosecutor's Office, relying as usual on the findings of some obscure experts, suspects that "the information contained in the book may promote the formation of nationalist views.' The real reason may be that the book has been confiscated during a search in an "extremist' investigation, and also the reputation of the publisher: indeed, the Iauza Publishing House is known for producing xenophobic and radical nationalist literature.

In Volgograd, the Prosecutor's Office found evidence of extremism in Hitler's biography by Joachim Fest, a classic first published in Germany in 1973.

Bans in the Context of Election Campaigns

In Russia, hardly any political candidates or party lists have been banned for extremism, even though some candidates have engaged in radical racist campaigning in recent years. The single widely known and, indeed, the most significant case was the removal of the Motherland (Rodina) Party from the Moscow City Duma elections in the fall of 2005. The party was not allowed to stand in elections after they televised a campaign video entitled "Let's clean our city of garbage,' where a court, quite understandably, found incitement to ethnic hatred and animosity. We may argue about whether a single episode is sufficient for a party to be banished from elections; the law leaves it to the court's discretion.

We have no doubt, however, that the decision was selective and political. Firstly, the LDPR was not removed from the same elections, even though its campaigning was also xenophobic (and most importantly, very similar in principle to Rodina's) - in fact, this type of campaigning has never caused the LDPR to be removed from elections. Secondly, within a few months of 2006, Rodina was banned from elections in all but one region where they attempted to stand for local legislatures; some of the bans were triggered by their xenophobic campaigning, while others were based on merely technical grounds.

Since then, hardly anyone has been removed from elections "for extremism,' even though many incidents have occurred which warranted it. Apparently, removal from elections for a political reason - and charges of extremism are interpreted as political - is considered undesirable.

The most recent incident of removal from elections was clearly unfounded. On 17 March 2008, in Saratov, the district election commission annulled the registration of a Communist Party candidate, Sergei Mikhailov, editor-in-chief of the Saratov Reporter, for additional elections to the City Duma, referring to an effective warning of his paper for the article Do not Beat a Yid - Russia Is Saved (see above). Whether or not the warning was inappropriate, the annulment of Mikhailov's registration was unfair, because he had not committed any crime or made any statements which could have legally warranted such a restriction of his rights.

As mentioned above, authorities confiscated some political parties' campaign materials en masse during the parliamentary election campaign of 2007, including leaflets and other promotional publications. They confiscated millions of campaign leaflets from SPS and returned them to the party immediately after the elections. At the same time, some TV channels refused to air election campaign videos of some parties (SPS, the Just Russia Party, KPRF) suspecting extremism in their calls to punish corrupt bureaucrats, particularly in the KPRF clips which showed a poster saying "Put Chubais in the Electric Chair!' The suspicions of extremism were never confirmed, but the campaign videos were not televised anyway.

Even though in some cases courts have found administrative sanctions unwarranted, we are not aware of any bureaucrats punished for such violations. This impunity, of course, encourages bureaucrats to continue their abusive practices.

On a few occasions during the federal election campaign, local officials banned representatives of the political opposition from holding public events on the pretext that extremist statements might potentially be pronounced there (examples include Komsomolsk-on-the-Amur and Barnaul).

CONCLUSION

In the first few years after its adoption, the 2002 Law was rarely enforced, therefore incidents of excessive and abusive restrictions related to such enforcement were also rare. The situation changed drastically in 2006. Abusive enforcement has been on the rise since then, yet this is not the whole story.

Firstly, the 2007 amendments rendered the definition of extremism much more consistent. The amendments and enforcement practices clarified the meaning and the purpose of the anti-extremist legislation. In short, extremism is a collective term for illegal acts (including those made illegal by the 2002 Law) involving some form or another of racial, ethnic, religious, political, ideological or social hostility, any of which may be interpreted rather broadly.

The government refused to make a distinction between truly dangerous acts (such as terrorism, preparation of riots, organized violent actions, etc.) and less dangerous offenses (minor public order offenses inevitable during street protests, certain manifestations of intolerance, etc.). Moreover, the government sends a clear signal that the vague boundary between unacceptable extremism and acceptable protest may be shifted arbitrarily to a large degree. Indeed, the signal has been received.

Secondly, the Russian law enforcement authorities are learning step by step to apply the extensive and rather complex anti-extremist provisions. Generally speaking, at first no one dares to enforce a new rule, then the circumstances warrant its application once or twice, and then the authorities pick up and scale up the new practice. Admittedly, this is not always the case (e.g. no scaling up of unwarranted convictions under article 282 of the Criminal Code has been observed), however one can expect further growth of unwarranted anti-extremist enforcement in its diverse forms as the authorities realize the potential of the 2002 Law.

We should emphasize that such enforcement has always been, and will always be, selective, because consistent enforcement may lead to an overwhelming number of cases. Rather than massive suppression, the law is likely to be used for large-scale intimidation through selective enforcement in "model cases'. [34] A law designed to be enforced selectively and affecting fundamental civil rights and liberties can be extremely damaging for the entire legal system and for society at large.

Thirdly, over the last couple of years the term extremism has strongly penetrated the enforcement practices and the rhetoric of Russian officials, but the meaning usually attached to it is unacceptably vague and arbitrary, as opposed to that defined in the law. Even though the law requires a judicial ruling to find certain materials, organizations or action extremist (more precisely with regard to actions: a judicial ruling after appropriate unchallenged warnings), according to our observations, people do not stick to accurate usage of this term (of course, we refer to people in their official capacity, rather than private individuals who cannot be expected to use accurate legal terminology every time).

We have mentioned denials of permission to hold a public meeting on a mere suspicion that extremist actions may occur. Prosecutors sometimes refer to certain "lists of extremist organizations' in their possession, even though they really mean lists of organizations (usually youth groups) suspected of extremism.

Police are guided by these obscure lists to stop activists of such organizations for frequent ID checks, and also refer to them as "lists of extremists.' Apparently, they use the term inaccurately, but the mere existence of such lists used for excessive and unwarranted ID checks (in the absence of evidence or suspicion of crime) is unacceptable.

In fact, the government suggests the existence of a certain broadly defined public evil, and the public has almost taken in the message that the evil is there and has to be suppressed. The policy framework is such that law enforcement authorities are just partially and inconsistently engaged in counteracting this phenomenon, whereas a range of non-state actors, such as TV companies, not to mention politicians and public figures, become gradually involved in it alongside some opposition leaders: representatives of the KPRF and Yabloko have, for example, complained to the Prosecutor's Office requesting that it investigate the United Russia Party's allegedly extremist proposals to change the Constitution, even though proposals as such cannot be illegal.

Increasingly, the authorities repress truly dangerous groups - such as neo-Nazis - but on the other hand, unwarranted restriction of civil and political rights in connection with anti-extremist sanctions are even more visible and numerous than before. The fight against extremism, even though some of the "fighters' are inconsistent and unreasonable, has almost developed into a systematic campaign designed to further limit civil liberties. In fact, we can say that "anti-extremism' may be the main instrument used today for this purpose.

APPENDIX 1.

Definitions of Extremism and Extremist Materials

Below we provide the definition of extremist activity as given in paragraph1, article 1 of the Federal Law on Combating Extremist Activity.

More specifically, we attempt to show the evolution of this definition with each subsequent amendment:

- current provisions are in bold;

- parts deleted by the 2007 amendments are in regular, strikethrough font;

- and parts added by the same amendments are underlined;

- parts added by the 2006 amendments are in italics (some of them were subsequently deleted in 2007).

Where the changes were merely editorial in nature, this is indicated in the footnotes.

Extremist activity (extremism):

the activity of social and religious associations, or other organisations, or mass media editorial staff [in practice, it is the media outlet as a whole which is held responsible and which faces closure], or individuals in planning, organising, preparing or acting to bring about